The Intent Behind the Cryptic Concurrence That Provided a Reporter's Privilege

Justice Lewis Powell wrote a concurrence in Branzburg v. Hayes that, despite a majority opinion to the contrary, eventually provided room for journalists to claim a privilege against testifying in grand jury proceedings. For decades, scholars and judges have questioned what Justice Powell meant by his concurrence and whether he, in fact, supported a reporter's right to refuse to reveal confidential information. Justice Powell's personal papers and case files, as well as those of his fellow justices, observations of one of his former law clerks, and oral arguments shed light on the reasoning behind Justice Powell's enigmatic concurrence. This article concludes that Justice Powell supported a qualified reporter's privilege, applied on a case-by-case basis.     

Backing Away From Equality

Abstract

In his early work in political philosophy, Amartya Sen advanced an interesting and provocative thesis – the egalitarian thesis. This is the claim that every conception of social justice that has received support in recent times is egalitarian. This paper argues that Sen's account of capabilities and his more recent critique of transcendental justice have implications for the truth of the egalitarian thesis. It also discusses how the rejection of the egalitarian thesis bears on the larger, and more general, issue of the overall plausibility of egalitarian conceptions of social justice.     

Metamorphosis in Hans Kelsen's Legal Philosophy

Two major questions stem from the fundamental shift in Hans Kelsen's legal philosophy that takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation. On the first question, I argue that the shift is not limited to Kelsen's rejection of the applicability of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his earlier work. On the second question, I argue that the explanation for the shift has a conceptual dimension as well as a historico‐biographical dimension. That is, I argue that Kelsen's rejection of the principle of non‐contradiction vis‐à‐vis legal norms reaches to the Kantian edifice in that the principle was presupposed in Kelsen's earlier work and appears, expressis verbis, in his ‘Kantian filter’. And I argue that certain historico‐biographical data are germane, including, quite possibly, the earlier revolution in Kelsen's thought, that of 1939–40.     

Giovanni Battista Ratti's Critique of Principles Theory

Ratti has attacked principles theory in two respects. The first is that it is impossible to distinguish between rules and principles. The second is that the main thesis of principles theory, which says that balancing is the specific way of applying principles, is wrong. The result of Ratti's critique is his thesis that principles theory founders on a contradiction or, as Ratti calls it, an antinomy. All of this is based on two arguments: Ratti's disapplication argument and his law of concretization. I attempt to reject this analysis, for it is incomplete. It claims to be an analysis of balancing, but it misses the decisive point of balancing. Informed by this background, I defend the distinction between rules and principles as a distinction of the real and the ideal “ought.”     

NOT JUST “FOR THE THRILL OF IT”: AN INSTRUMENTALIST ELABORATION OF KATZ'S EXPLANATION OF SNEAKY THRILL PROPERTY CRIMES*

In his controversial challenge to criminologists, Jack Katz argues for a reexamination of situational factors that precipitate criminal acts, specifically those that concern crime's sensual dynamics. According to Katz, people's immediate social environment and experiences encourage offenders to construct crimes as sensually compelling. Although insightfil, I suggest that this thesis is limited, specifically as it applies to “sneaky thrill” property crime. Katz's emphasis on the enticements of theft, at the expense of other variables, negates a considerable body of research and leaves a theoretical hiatus that encourages explanations grounded in individual pathology. I suggest a revision of Katz 's approach that addresses these concerns. I test this reformulation with models of various stages of sneaky thrill theft. The results of this analysis affirm that the seduction of theft has an important instrumentalist component and is influenced by several background factors, namely, age, gender, and the strain associated with inadequate econ om ic opportunities.     

G. A. Cohen's Conception of Law: A Critique*

This note will challenge G. A. Cohen's view of the interaction between legal systems and economic structures; such interaction raises the so-called problem of legality, which Cohen sets out to solve in the eighth chapter of Karl Marx's Theory of History (Cohen 1978, 216–47). In the course of this note, we shall interrogate the presumed rigor of Cohen's theory of base/superstructure relations, to which his understanding of law is central. His approach will not be simply destroyed, but will be resituated in a network of problems that can highlight a certain fissure between his aspirations and his performance.     

Radbruch and Hart on the Grudge Informer: A Reconsideration

Hart's defense of the separation of law and morality is partly based on his refusal to accept Radbruch's solution of the well‐known grudge informer case, in his famous article “Statutory Injustice and Suprastatutory Law.” In this paper, I present a detailed reconstruction of the “debate” between Radbruch and Hart on this case. I reach the conclusion that Hart fails to address the issue that was Radbruch's primary concern, namely the legal position of the judiciary when dealing with criminal statutes. I suggest that Hart's separation thesis cannot be upheld in the face of this concern. In my argument, Hart's mistaken understanding of the verdict of the Oberlandesgericht Bamberg that he refers to plays a crucial role.     

The Quest for a Satisfactory Definition of Terrorism: R v Gul

The UK Supreme Court judgment in R v Gul presented a unique opportunity for a judicial appraisal of the definition of terrorism contained in section 1 of the Terrorism Act 2000. While the applicant was ultimately unsuccessful in his challenge, the Supreme Court's rejection of the state's argument that reliance on prosecutorial discretion could mitigate certain absurd applications of the section 1 definition of terrorism, eg the labelling of acts of UK or other military forces as terrorist, has potentially wide‐raging implications for the UK's counter‐terrorism measures. In addition, the powerful obiter dictum arguing in favour of a reform of this definition and a ‘root‐and‐branch’ review of counter‐terrorism legislation is a strong rebuke of recent high profile misapplications of such powers.     

‘Something older than law itself’: Sir Henry Maine,Niebuhr, and ‘the path not chosen’

This article re-evaluates the intellectual context of Maine's historical jurisprudence by emphasising the importance of his classical background. Maine's time at Cambridge coincided with the rise of ‘progressive classical scholarship’, especially the study of ancient history in its social, economic and institutional setting. By exploring the links between Maine's work and that of the ancient historian Barthold Georg Niebuhr, the article argues that an understanding of Maine's classical provenance enriches the appreciation of his work, especially its literary, interdisciplinary and educational challenge to the common law mind. Maine emerges on this account as a Victorian ‘neo-humanist’ whose later neglect is symptomatic of the more general separation of nineteenth-century English jurisprudence from mainstream European thought.     

Why Reflective Equilibrium? I: Reflexivity of Justification

In A Theory of Justice (1971), John Rawls introduces the concept of “reflective equilibrium.” Although there are innumerable references to and discussions of this concept in the literature, there is, to the present author's knowledge, no discussion of the most important question: Why reflective equilibrium? In particular, the question arises: Is the method of reflective equilibrium applicable to the choice of this method itself? Rawls's drawing of parallels between Kant's moral theory and his own suggests that his concept of “reflective equilibrium” is on a par with Kant's concept of “transcendental deduction.” Treating these two approaches to justification as paradigmatic, I consider their respective merits in meeting the reflexive challenge, i.e., in offering a justification for choice of mode of justification. My enquiry into this topic comprises three parts. In this first part, I raise the issue of the reflexivity of justification and question whether the reflexive challenge can be met within the framework of A Theory of Justice.     

Why Reflective Equilibrium? II: Following Up on Rawls's Comparison of His Own Approach with a Kantian Approach

In A Theory of Justice (1971), John Rawls introduces the concept of “reflective equilibrium.” Although there are innumerable references to and discussions of this concept in the literature, there is, to the present author's knowledge, no discussion of the most important question: Why reflective equilibrium? In particular, the question arises: Is the method of reflective equilibrium applicable to the choice of this method itself? Rawls's drawing of parallels between Kant's moral theory and his own suggests that his concept of “reflective equilibrium” is on a par with Kant's concept of “transcendental deduction.” Treating these two approaches to justification as paradigmatic, I consider their respective merits in meeting the reflexive challenge, i.e., in offering a justification for choice of mode of justification. My enquiry into this topic comprises three parts. In the first part (Eng 2014a), I raised the issue of the reflexivity of justification and questioned whether the reflexive challenge can be met within the framework of A Theory of Justice. In this second part, I shall outline a Kantian approach that represents a paradigmatic alternative to Rawls.     

Why Reflective Equilibrium? III: Reflective Equilibrium as a Heuristic Tool

In A Theory of Justice (1971), John Rawls introduces the concept of “reflective equilibrium.” Although there are innumerable references to and discussions of this concept in the literature, there is, to the present author's knowledge, no discussion of the most important question: Why reflective equilibrium? In particular, the question arises: Is the method of reflective equilibrium applicable to the choice of this method itself? Rawls's drawing of parallels between Kant's moral theory and his own suggests that his concept of “reflective equilibrium” is on a par with Kant's concept of “transcendental deduction.” Treating these two approaches to justification as paradigmatic, I consider their respective merits in meeting the reflexive challenge, i.e., in offering a justification for choice of mode of justification. In the first part of this enquiry (Eng 2014a), I raised the issue of the reflexivity of justification and questioned whether the reflexive challenge can be met within the framework of A Theory of Justice. In the second part (Eng 2014b), I outlined a Kantian approach that represents a paradigmatic alternative to Rawls. In this third and final part, I shall argue that Rawls's reflective equilibrium cannot justify the choice of itself and that in the broader perspective thus necessitated, we cannot escape the metaphysical issues integral to the Kantian approach.     

Face mask mandates: Unilateral authority and gubernatorial leadership in US states

During the first year of the COVID-19 pandemic in the United States, the coordination and cooperation between the federal government and the states failed. American governors were thus tasked with making critical public health policy choices—under extreme uncertainty—with varying institutional capacities, partisan pressures, and state demographic differences. Yet most of the nation's governors chose to impose a face covering or mask mandate to limit the spread of cases. We collected each governor's executive order that mandated the conditions under which their residents would be required to wear a mask and employed a sentiment analysis program to extract key qualities of crisis leadership communication. Our analyses provide insights into the institutional and partisan factors that determined a face mask mandate as well as the institutional, demographic, and leadership communication qualities that affected the total number of cases per capita in the states. Our findings have important implications for post-pandemic policy recommendations with respect to the effectiveness of policies that seek to lower the transmission of viruses in public spaces and the characteristics of impactful public health messaging by government leaders.     

Punishment or therapy? The ethics of sexual offending treatment

Abstract

The claim that sex offender treatment is a form of punishment and as such cannot be covered by traditional ethical codes is a controversial one. It challenges the ethical basis of current practice and compels clinicians to rethink the work they do with sex offenders. In this paper I comment on Bill Glaser's defence of that idea in a challenging and timely paper and David Prescott and Jill Leveson's rejection of his claims. First, I consider briefly the nature of both punishment and treatment and outline Glaser's argument and Prescott and Levenson's rejoinder. I then investigate what a comprehensive argument for either position should look like and finish with a few comments on each paper.     

CERVICAL CANCER PREVENTION: MANDATING THE HPV VACCINE AS A CONDITION OF SCHOOL ATTENDANCE

This Note advocates that states require all females entering the sixth grade to be vaccinated with the HPV vaccine Gardasil, as a means of preventing cervical cancer deaths in the United States. States that do pass such a mandate would receive federal funding to help disperse the cost of the expensive three‐dose vaccine, especially to those females most in need. Subject to each individual state's mandate, parents would be allowed to opt their children out of such a mandate for religious, medical, and/or philosophical reasons.     

What is Left of the Law and Society Paradigm after Critique? Revisiting Gordon's “Critical Legal Histories”

For more than twenty‐five years, Robert Gordon's “Critical Legal Histories” has been savored by legal historians as one of the most incisive explanations available of what legal history can and should be. Gordon's essay, however, is of significance to the course of sociolegal studies in general. This commentary offers an appreciation, and a critique, of “Critical Legal Histories.” It explores Gordon's articulation of the central themes of critical legal studies, in particular his corrosion of functionalism and embrace of the indeterminacy thesis, and assesses the consequences for sociolegal and legal‐historical analysis of the resultant stress on the contingency and complexity of social life.     

Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View

This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance of the one‐right‐answer thesis and the consequent thinning of the differences between MacCormick's theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick's thought, but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory.     

验资机构对验资委托人的民事责任及其认定

验资机构和验资委托人之间的委托合同以委托人与验资机构之间的相互信任为前提,属于双务、有偿合同、不要式和诺成的特别委托合同。验资机构对验资委托人的民事责任存在契约责任与侵权责任竞合的情形。损害赔偿是验资机构对验资委托人承担民事责任的主要方式。由于委托人或第三人的原因而导致验资机构出具的验资报告与实际状况不符,委托人或第三人应当承担相应的责任。对于委托验资合同的免责条款的效力,应当从我国现行合同立法的规定和合同权利义务以及风险分配的合理性两个方面出发加以认定。     

Secret Laws

There is a thesis that legal rules need to be made public because people cannot guide their conduct by rules they cannot know. This thesis has been a mainstay of anti‐positivism and the controversy over it continues apace. However, positivism can accommodate the secret laws thesis. The deeper import of the debate over secret laws concerns our understanding of law's nature. In this regard secrecy merits attention as a candidate necessary connection between law and immorality. In addition the mediating role of lawyers as experts in ascertaining the law should be highlighted. It has been widely overlooked despite the fact that lawyers are criterial in Hart's concept of law.     

Tactical Balancing: High Court Decision Making on Politically Crucial Cases

This article advances a new account of judicial behavior: the thesis of tactical balancing. Building on existing models of judicial decision making, the thesis posits that high court justices balance a discrete set of considerations—justices' ideologies, their institutional interests, the potential consequences of their rulings, public opinion, elected leaders' preferences, and law—as they decide important cases. Variation in a high court's balancing of those considerations as it decides different cases leads it to alternate between challenging and endorsing the exercise of government power. The way in which high courts carry out this “tactical balancing” reflects their broader strategy for prioritizing the different roles they can play in a polity, and thus has significant implications for the rule of law and regime stability in developing democracies. The thesis is illustrated through a detailed analysis of the Brazilian high court's rulings on cases concerning crucial economic policies (1985–2004).